Introduction
International child abduction cases are among the most sensitive and technically demanding proceedings in modern family law. Beyond the emotional impact on the families involved, these disputes raise complex legal questions concerning jurisdiction, habitual residence, custody rights and the effectiveness of judicial cooperation across borders.
With the entry into force of Regulation (EU) 2019/1111 (Brussels II ter), the European framework governing international child abduction has evolved significantly. The Regulation strengthens cooperation mechanisms, tightens procedural deadlines and places renewed emphasis on the quality of evidence presented from the very outset of the proceedings.
In practice, the outcome of international child abduction cases is rarely determined by urgency alone. Instead, it depends on early strategic planning, rigorous evidentiary construction and a precise understanding of how Brussels II ter operates in cross-border litigation.
1. The Central Role of Habitual Residence
Under Brussels II ter, the concept of habitual residence of the child remains the cornerstone of jurisdiction in international child abduction proceedings.
European courts have consistently confirmed that habitual residence is not a formal or administrative concept. It is a factual assessment, requiring a holistic evaluation of the child’s life immediately prior to the alleged wrongful removal or retention.
Key elements typically examined by courts include:
- the duration and stability of the child’s presence in a State,
- school attendance and educational integration,
- family and social environment,
- daily routines and language use,
- the degree of integration into a social and cultural context.
A frequent strategic error is to rely on registrations or formal documents alone. Without contextual and corroborating evidence, such documentation is rarely sufficient to establish habitual residence under Brussels II ter standards.
2. Custody Rights: Formal Title vs. Effective Exercise
Another decisive issue in international child abduction cases is the effective exercise of custody rights.
Brussels II ter makes clear that it is not enough for a parent to hold custody rights in abstract. What matters is whether those rights were actually exercised at the time of the removal or retention, or would have been exercised but for the alleged abduction.
Courts typically assess:
- the parent’s involvement in the child’s daily life,
- decision-making regarding education, healthcare and residence,
- financial and practical contributions to the child’s upbringing,
- evidence of regular contact and responsibility.
Failure to demonstrate effective exercise of custody is one of the most common reasons for refusal of a return order. This assessment is strictly evidentiary and must be addressed from the very first procedural step.
3. Evidence as a Strategic Axis in International Proceedings
In international child abduction litigation, evidence is not a procedural accessory; it is the strategic axis of the case.
Brussels II ter requires that evidence be suitable not only for the court of origin, but also for cross-border recognition and enforcement. This has several practical implications:
- documentary evidence must be clear, coherent and verifiable,
- witness statements should be consistent and corroborated,
- digital evidence (communications, travel records, electronic documentation) must be properly preserved and contextualised,
- expert reports should be focused on legally relevant criteria, not general assessments.
One of the most damaging mistakes is building a case narrowly tailored to a single jurisdiction. Even a favourable decision may become ineffective if the evidentiary basis does not withstand scrutiny in another Member State.
4. Urgency Does Not Replace Legal Technique
International child abduction cases are inherently urgent. However, urgency cannot replace legal technique.
Brussels II ter introduces accelerated procedures, but it simultaneously raises expectations regarding procedural rigour and judicial cooperation. Courts are increasingly reluctant to grant return orders based on incomplete or poorly structured files, even when time pressure is evident.
Experience shows that deficiencies at the initial stage tend to solidify rather than disappear. Once a factual situation becomes established, reversing it becomes exponentially more difficult, regardless of the legal merits.
5. Cross-Border Enforceability as a Primary Objective
A defining feature of Brussels II ter is its emphasis on effective cross-border enforcement.
For practitioners, this means that every strategic decision must be evaluated through a dual lens:
- Will this argument succeed before the court seised?
- Will the resulting decision be enforceable in another Member State?
Failure to address the second question often leads to outcomes that are legally correct in theory but ineffective in practice.
6. International Child Abduction in a Broader Family Law Context
International child abduction cases rarely exist in isolation. They frequently intersect with:
- cross-border custody disputes,
- parallel proceedings in different jurisdictions,
- issues of parental responsibility and relocation,
- subsequent patrimonial or succession-related conflicts.
A fragmented legal approach increases the risk of contradictory decisions and long-term instability. By contrast, a structural and coordinated strategy enhances legal certainty and protects the child’s best interests beyond the immediate proceedings.
